Systemic Discrimination

Human Rights: Systemic Discrimination

Cases of discrimination may not be so evident on the surface. In any case alleging discriminatory conduct, it is clear that the employee may offer evidence which is systemic in nature to prove the case, even where the complainant is an individual.

Adverse treatment based on a general large scale “practice or attitude” which negatively effects a person or a group of person based on the collective attributed characteristics is generally referred to as “systemic discrimination”. 1

A pattern of adverse treatment may be active or passive conduct. The principle of systemic treatment is conduct which is “so pervasive and so prominent and so deeply rooted that the discrimination could be said to be systemic, not in the sense that it lacked deliberation, but in that it was imbedded in the totality of the system and co-extensive with it”. 2

In an employment context systemic discrimination results “from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination”. The exclusion is the result of “natural forces” which “fosters the belief, both within and outside the group”. 3

Such evidence may come from practices, attitudes and policies or procedures. 4

It must be shown that the employer’s conduct, as it may be, adversely effects a class of employees and that there is the causal link between the protected value and the adverse treatment.

An example of the finding of such a systemic policy is one in which employees with disabilities were advised that there would be grounds for discipline if their absenteeism rate exceeded the average for a comparable class. Employees with disabilities hence became subject to termination at an earlier time compared with the non-disabled. 5

The Supreme Court considered this issue of adverse treatment due to a broad policy of the respondent and whether this may constitute discrimination by a general policy or systemically.

It is not the correct analysis, the court concluded, to view the questioned conduct as being directed to an individual one on one, or by an overall pattern based on a larger scale plan. The issue is a simpler one, namely, the practice is unfair when it has “an unjustifiably adverse impact on a single individual or systemically on several”. 6The only difference between the two is the number of people impacted.

The approach to a claim based on systemic treatment and the evidence may be distinct from an individual case but essentially the same issue is questioned, namely, did “the complainant suffer arbitrary adverse effects based on a prohibited ground”. 7It is clear that the tribunal may consider systemic evidence. 8

The manner of proof required in such a case of a systemic pattern is distinct from an individual case. To succeed the applicant must show “that practices, attitudes, polices or procedures impact disproportionately on certain statutorily protected groups”. 9Such a case must show “patterns”, “trends of discrimination”. 10

The Ontario Human Rights Commission publishes “Guidelines on Racism” in which it defines what it refers to as “systemic and/or institutional” discrimination. 11

It has been noted that often actions are taken based on the presumed characteristics of a group. This is referred to as “stereotyping”. It may take many forms. As the Ontario guideline 12states:

One of the most obvious ways in which people experience racial discrimination is through stereotyping. Stereotyping can be described as a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information and/or false generalizations. Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. While it may be somewhat natural for humans to engage in racial stereotyping it is nevertheless unacceptable.

Actions which are offensive may be taken on such a basis of “subtle stereotyping”, such as found in the case of security guards acting against suggested wrongdoers. It matters not whether this was conscious or otherwise. 13 Such conduct often arises due to “unconscious biases or belief”. 14

Similarly the workplace process by which a person or group of persons is assessed may show evidence of adverse treatment. A higher level of expectation or scrutiny and discipline may be “disproportionate to the conduct at issue which might illustrate differential adverse treatment”. 15

 

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Footnotes

  1. In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114
  2. C.N.R. v. Canada Human Rights Commission at 678 per MacGuaigan, J. in dissent. These words were later upheld by the Supreme Court of Canada in the decision immediately above.
  3. In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), par 1138
  4.   B.C. v Crockford
  5. In this case the Court of Appeal set aside the chambers decision on this point and restored the adjudicator’s decision. Coast Mountain Bus v CAW Canada 
  6. 2012 Supreme Court of Canada decision in Moore v BC (an adverse effect discrimination case)
  7. Moore v BC. The SCC in Moore found against the allegation of systemic adverse treatment in the case before it but allowed the concept 
  8. The Canadian Human Rights Tribunal in Desmarais v Correctional Service of Canada
  9. British Columbia v. Crockford
  10. as above 
  11. By s. 45(5) on the Ontario Code the HRTO may consider this policy as a guide to the interpretation of the Code.
  12.   OHRC Guidelines on Racism, p 18. As referenced in Bageya v Dyadem
  13. Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005) BCHRT
  14. Divisional Court in Toronto (City) Police Service v. Phipps; affirmed Ontario Court of Appeal in Phipps v Shaw; see also Brar v BC Veterinary Medical Association
  15. Kalyn v. Vancouver Island Health Authority (No. 3), 2008 BCHRT 377